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Discrimination: belief in public sector inefficiency may be protected

In this case, the EAT considered whether a belief that public service is improperly wasteful of money could be a belief protected by discrimination legislation.

The facts

Mr Harron worked for the Dorset Police force. He had a genuine belief that public service was improperly wasteful of money. He claimed that he felt compelled to express his views, and as a result suffered discrimination on the ground of a philosophical belief.

For a belief to be protected, minimum requirements must be met. These are:

The belief must relate to matters more than merely trivial;

The belief must be coherent in the sense of being intelligible and capable of being understood; and

The threshold for determining whether any such requirement is met must not be set too high.

Complementary case law has also established that there are five criteria which all have to be met for a belief to be protected. These are:

The belief must be genuinely held;

It must be a belief and not an opinion or viewpoint based on the present state of information available;

It must be a belief as to a weighty and substantial aspect of human life and behaviour;

It must attain a certain level of cogency, seriousness, cohesion and importance;

It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

An Employment Judge accepted that the first and fifth criteria were met by Mr Harron. However, he had not established the other criteria, and was not therefore protected. Mr Harron appealed.

The EAT questioned the process by which the Employment Tribunal had decided that the three criteria had not been met.

In relation to the second criteria, the Employment Tribunal had not shown, as it should have done, its discussion about whether Mr Harron had a belief or a view based on information available to him. To demonstrate the difference between the two, the EAT referred to a case in which a registrar had a view about allowing same sex partners to adopt children. He was found to have taken this view not as a matter of principle, but as a matter of that which the evidence then available showed to him. This had been a view point rather than a belief.

The EAT also held that, although it was open to the tribunal to decide that the belief was not protected, what the tribunal had said about the third and fourth criteria was insufficient, and it could not be satisfied that the tribunal had followed the correct approach. It said that the tribunal had to approach the question of whether the belief was protected by ensuring it was not setting the bar too high, though the belief should relate to something more than trivial.

The case was remitted to the Employment Tribunal for redetermination of the question of whether the belief qualified for protection.

What does this mean for employers?

This case shows that it is possible that beliefs such as Mr Harron's belief in public sector efficiency could be protected. Employers should be alive to this risk (as well as the possibility of whistleblowing protection) if they are subjecting employees to any detriment for expressing their views.

However, the case does not mean that such beliefs will necessarily be protected. Mr Harron was successful in his appeal because the tribunal had not shown that it had gone through the right process, applying the correct criteria. The EAT was clear that, to be protected, a belief should be in something more than trivial, and that it should be in a fundamental problem, which might exclude beliefs that have so narrow a focus "as to be parochial rather than fundamental".

Compare jurisdictions:Litigation: Enforcement of Foreign Judgments

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